2023 (12) TMI 616 - HC - Customs

Provisional release of goods - Constitutional Validity of Circular No. 35/2017-Cus dated 16.08.2017 - ultra vires and violative of Section 151A of the Customs Act, 1962 - HELD THAT - A plain reading of the impugned order indicates that the said conditions were imposed in the light of paragraph 2.1 and 2.2 of the impugned Circular issued by the Central Board of Excise and Customs. Paragraph 2 of the impugned Circular, which indicates the conditions on which the provisional release of the goods can be granted, was declared as void by a Coordinate Bench of this Court in ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) VERSUS M/S. ITS MY NAME PVT. LTD. 2020 (6) TMI 72 - DELHI HIGH COURT . In view of the above, since the impugned order has been passed on the basis of paragraph 2 of the impugned Circular, the same is liable to be set aside. The impugned order is set aside and the matter is remanded to respondent no. 6 to decide afresh and the petitioner s application for provisional release of the goods is restored before respondent no. 6 - Petition allowed.

Summary

Issues:
The issues involved in the present petition are covered by the order passed today in another case.

Impugned Circular Declared Ultra Vires:
The impugned Circular No. 35/2017-Cus dated 16.08.2017 was challenged by the petitioner as ultra vires and violative of Section 151A of the Customs Act, 1962. A previous decision set aside paragraph 2 of the impugned Circular as ultra vires to the provisions of the Customs Act, rendering the petitioner's challenge moot.

Challenge to Impugned Order:
The petitioner contested an order dated 02.12.2023 directing provisional release of goods upon specific conditions. The conditions were imposed in reference to the impugned Circular, which was previously deemed void by a Coordinate Bench of the Court. As the impugned order was based on the now-invalid paragraph 2 of the impugned Circular, it was deemed necessary to set aside the order.

Remand for Fresh Decision:
The matter was remanded to respondent no. 6 for a fresh decision due to the impugned order being set aside. Respondent no. 6 was directed to decide the matter afresh within four working days, considering the perishable nature of the goods involved. The petitioner was instructed to appear before respondent no. 6 on a specified date and time.

Disposition of Pending Applications:
The pending applications were disposed of, and the impugned order was set aside. The matter was remanded for a fresh decision, emphasizing the urgency of the situation due to the perishable nature of the goods.